A Libyan man walks through an apartment damaged by NATO bombs in September 2011 (Photo: Tyler Hicks / The New York Times)

A recent report released by Human Rights Watch, entitled “Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya”, has called upon NATO to thoroughly investigate any of its air strikes in Libya last year that killed civilians. NATO reacted sharply, exclaiming that it “deeply regret[s] any instance of civilian casualties for which NATO may have been responsible,” but that “the specific targets struck by NATO were legitimate military targets”and that the organization did everything possible to ensure that the loss of civilian life was minimal. The report and NATO’s response to it have recently triggered a timely debate: could, should and will the International Criminal Court investigate NATO’s role in the Libyan conflict?

Should They?

NATO was involved in a massive aerial campaign in Libya for eight months, there is no escaping that civilians were killed as a result, and any instances where this occurred should be investigated. If NATO or its member states are unwilling to thoroughly and transparently investigate incidences where their bombings resulted in a significant number of civilian casualties, it seems rather clear that the ICC should investigate NATO’s actions in Libya. This, of course, does not mean that NATO is guilty of committing war crimes or that NATO’s intervention should be vilified. There is an ever-present risk of demonizing NATO and the US, not for what they do, but simply for being Western. As David Rohde recently put it: “Some of the perceptions are exaggerated. The U.S. and NATO are not evil incarnate, nor are they perfect.”

There is a general acceptance that NATO’s intervention resulted in a remarkably low number of civilian casualties. Notably, while it was critical of NATO in some cases, the report of the UN Commission of Inquiry on Libya concurred that NATO had taken extensive precautions to prevent civilian deaths. HRW also accepts that civilian casualties were likely minimal. In this context, it is worthwhile highlighting that neither HRW nor the Commission of Inquiry have called on the ICC to investigate NATO, believing that NATO can and should investigate cases of civilian casualties themselves.

Of course, NATO’s success in minimizing civilians deaths does not excuse those instances where there were civilian deaths from being investigated. If there exists any right to truth for victims and survivors to know what happened to their family members, friends and communities, investigations into those aerial missions that resulted in civilian casualties are necessary.

Perhaps the most persuasive reason proffered as to why NATO shouldn’t be investigated is the argument that it would make future NATO interventions in response to atrocities less likely. But this argument presumes that NATO’s mandate cannot be enchanced from being investigated. On the contrary, an investigation by the Court that clears NATO of war crimes would boost the military organization’s credibility in combating atrocity crimes. It would also keep pressure on NATO to continue efforts to minimize the possibility of any civilian deaths in contexts where it intervenes.

Accepting that the ICC should investigate NATO crimes, the question becomes can they?

Can They?

There is no legal barrier to investigating citizens of those NATO states involved in Libya which are also signatories to the Rome Statute. A more controversial question, however, emerges with citizens of NATO members who are not members of the ICC, most obviously the United States. As I have argued elsewhere, the UN Security Council’s referral of Libya to the ICC, under Resolution 1970, was politically tailored by the Security Council (see also my recent academic analyses [here and here]). In this context, the US pushed through Operative Paragraph 6 of Resolution 1970 which excludes citizens of non-state parties from the Court’s jurisdiction, by stipulating that the Council:

“Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State”

David Bosco argues that Operative Paragraph means that the “court would not be able to reach American forces.” However, drawing on Rob Cryer’s excellent analysis of the Security Council’s 2005 referral of Darfur to the ICC, Kevin Jon Heller convincingly argues that the ICC is, in fact, able to investigate any alleged crimes committed by American citizens, concluding that “[n]othing in the Rome Statute gives the Security Council the right to revise the Court’s jurisdiction”.

Assuming that Heller is right and the ICC can investigate any alleged atrocity crimes committed by non-states parties in Libya, we have covered both whether the ICC should and whether the ICC can investigate any alleged crimes by NATO member states in Libya.This leads us to perhaps the trickiest – and most frustrating – question: will they?

Will They?

Back in November 2011, ICC Chief Prosecutor, Luis Moreno-Ocampo said that alleged crimes by NATO would be investigated “impartially and independently by the prosecution.” Moreover, as was made clear by Moreno-Ocampo’s report to the UN Security Council last week, the OTP has, in fact, done some preliminary investigations into NATO’s actions. Moreno-Ocampo noted that the Office of the Prosecutor (OTP) has focused on Article 8 of the Rome Statute, detailing what the Court regards as war crimes and specifically, Article 8(2)(b)(iv) which considers as a war crime:

“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

However, Moreno-Ocampo was quick to inform the Security Council that the OTP had no information to suggest that NATO “authorized the launching of strikes” which could fall under the category of war crimes outlined above. Moreno-Ocampo thus concluded that the OTP would monitor NATO and Libyan investigations into incidents where NATO bombings caused civilian deaths of sufficient gravity as to warrant attention from the Court.

No one who isn’t privy to the OTP’s internal machinations will know whether their investigations have been thorough or not. No report has been released on the ICC’s investigations into NATO and it remains unclear whether the OTP is legitimately investigating instances of civilian deaths resulting from NATO’s intervention or whether it is wrapping itself up in legal talk and paying lip-service in response to demands that NATO’s actions be thoroughly investigated.

According to the New York Times, this warehouse “may have been used to store ammunition at one point, but it held only canned tomatoes when it was bombed.” (Photo: Taylor Hicks/New York Times)

Moving Forward: Confronting Hypocrisy

A wider issue, alluded to by Heller, Bosco and others, remains the relationship between the UN Security Council powers as the dispensers of ICC jurisdiction via referrals and the ICC as the guardians of the Rome Statute. The Libyan referral, as noted above, was tailored to the political interests of the most powerful states on the Security Council. Not only did Operative Paragraph 6 seek to exclude citizens of non-state parties from the ICC’s jurisdiction, the Council also restricted the Court’s temporal jurisdiction to crimes committed after February 15, 2011, in contradiction to the Rome Statute which gives the Court jurisdiction back to July 1, 2002. But if these restrictions on the ICC contradict and contravene the Court’s legal mandate, has the OTP made an issue of it? The answer is no.

The OTP has remained completely silent on both the imposed restrictions on who can be investigated and prosecuted and the time period when the ICC can investigate. This silence falls precariously close to re-affirming the view that the infusion of political interests into international criminal justice will be unchallenged at best, eagerly accepted at worst.

This speaks to critical questions about the legal, moral and political direction of the OTP. Under Moreno-Ocampo, the OTP strategically aligned itself with the world’s most powerful states, clearly believing that their support was necessary to legitimizing the institution, regardless of the political baggage that it brought along.

With international criminal justice featuring almost daily in the media and in the demands of the oppressed and violated, expectations that justice is evenly and fairly achieved will only increase. No self-respecting human rights advocate can argue that serious violations of international law by Western powers – whether it be the fire-bombing of Dresden in WWII, NATO’s bombing of Serbia in 1999 or the US and UK’s role in torture and rendition cases – should have escaped investigation or accountability. Anyone who truly believes in the project of international criminal justice has to readily admit to these serious gaps in the project – not in order to concede that the project is fundamentally flawed but because only by recognizing these shortcomings can the project be furthered, the playing field be made equal, and international justice be impartial and universal.

In less than a month the OTP will welcome Fatou Bensouda as its second-ever Prosecutor and many have high hopes for her. But it remains to be seen whether Bensouda’s tenure will be marked by a greater confidence and courage in confronting the hypocrisy and political manipulation of the Court by the world’s most powerful states. But, for the project of international criminal justice, we should better hope it does and expect nothing less.

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About Mark Kersten

Mark is a researcher, consultant and teacher based at the Munk School of Global Affairs in Toronto, Canada. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.

9 Responses to Justice in Libya: Investigating NATO?

Thank you for sharing your analysis of the situation in Libya. I am particularly in agreement with the section that speaks of the right to the truth for victims and survisors on the fate of their families and add that an investigation by the ICC would contribute to narratives of a collective truth of the conflict in Libya. This should certainly entail investigations of all parties to the conflict – that includes NATO forces. A paraphrase of the principles of natural justice is that justice must not only be done but seen to be done. Excluding investigations of NATO forces by the ICC would send a skewed message of what international justice entails. Mere investigation as you rightly point out, is not condemnation but is reflective of respect for the due process of law. In addition, nothing in the Security Council Resolution 1970 prevents supplementary investigations by whatever other legal entity such as the US Govt., where such investigations are to ascertain the truth and more importantly bring to account individuals responsible for the unnecessary deaths of innocent Libyans. NATO forces claim to have targeted military objectives in their strikes, but even so, the principle of distinction between civilians and the military objectives, obviously lacking here, ought to have guided the strikes. It is indeed time to move past the hypocrisy and political manipulation of the ICC by some states.

Interesting discussion, but I disagree. The debate is framed purely on legal grounds, while NATO intervention was a political act sanctioned by the UN. It should not be forgotten what was the direct reason of the intervention – the Ghaddafi forces closing on Benghazi. How many victims of Ghaddafi’s would there be in Benghazi if there was no NATO intervention? Look at Syria for an answer. I am not ignoring the fact that there were victims of the NATO bombings, but was there a better solution for the international community? I agree that the best outcome was if NATO was investigated AND cleared, but how likely is that once lawyers dissect these events in their usual way?

This is a an obvious case of white washing a war of aggression against a peaceful state.
Ignoring the FACT that there were NO atrocities form the Libyan Government side.
All accusations by western criminal NGOs and the UN Council of Human Rigths were lies !!!
Atrocities were the charakter of the so called Rebells form the beginning.
Even NATO officially is NOT talking of any attrocites of the Gaddafi side any more.
Certainly not, because they are so honest. The lies are too obvious
The now official phrase is “The threat of a blood bath against Benghazi”. And even this is not backed by substance or linguistically.
NATO&Co executed a long planned foreign coup d’etat planned by France and Qatar.
This indiviuum is just trying to pave his career in the context of the massmurderes of NATO&Co.
There was no material base for the UN Resolutions. Therefor no base for rightful action.
Even their own Resolutions were broken by NATO&Co. Therefor NO rightful action.
The Author is defending massmurder of tens of thousands of Libyans , including the murdered soldiers, complaining only about some minor “mistakes”.

Staszek – I generally don’t disagree with you but I don’t think that I’ve said anything which would suggest that NATO was wrong to intervene, under a UN Security Council mandate, in Libya. In fact, I am a supporter of the intervention and believe that there was such an obvious threat to the people of Benghazi that a military intervention was absolutely necessary and legitimate. The question, however, is not whether NATO should have intervened (which we both agree it should have) but whether those instances where NATO missions killed civilians should be investigated or not. I think they should be transparently investigated by NATO or NATO member states. If civilians were killed that does *not* mean that someone from NATO has to go to be prosecuted or convicted unless it can be shown to be purposefully criminal or completely absent-minded. I think it’s unlikely that NATO purposefully or completely absent-mindedly killed civilians in Libya However, legitimate investigations would mean that the truth would be established and, possibly, that compensation could be paid to the families of victims. Any time a significant number of civilians is killed – regardless by whom – it should be investigated. The alternative to this belief, it seems to me, is to buy into and perpetuate a double-standard of justice.

Interesting post. There’s one point I don’t understand — with respect to temporal jurisdiction, you say: “…the Council also restricted the Court’s temporal jurisdiction to crimes committed after February 15, 2011, in contradiction to the Rome Statute which gives the Court jurisdiction back to July 1, 2002.”

The word restricted seems very strange and out of place. The Council authorized an investigation into crimes committed during the Libyan uprising, so why would it move the date back to 2002? That doesn’t make any sense, unless we are now pretending that the SC referral was about something entirely different, i.e. going after Gaddafi and his many prior misdeeds. I think we can at least agree that Gaddafi’s regime prior to 2011 is not why the SC authorized an ICC investigation, nor is it why NATO airstrikes were authorized?

But your comment raises a more interesting legal point. Should the Security Council be allowed to grant retroactive jurisdiction at all? My understanding of the law of the ICC is that the Court can only ever investigate crimes committed after July 1, 2002. State Parties will normally ratify/accede to the Statute and be bound by the Court’s jurisdiction from the date of signature/ratification (for those that ratified acceded before July 1, 2002, the Court had jurisdiction from that date onward; for all others, jurisdiction is usually prospective, i.e. from the date of accession.

However, as we have seen with Cote d’Ivoire, States may also choose to grant the ICC jurisdiction over crimes preceding — but not before 2002 — their ratification/accession… IF they choose to do so. That is a pretty big IF and it’s important to underline who gets to make that decision. States.

What is not clear to me is whether the Security Council — as opposed to States — can grant retroactive jurisdiction in the same way. SC referrals are highly controversial anyway, as they create international obligations for non-consenting states in direct violation of the Vienna Convention on Treaties (a point made by many scholars, e.g. Mamdani regarding Sudan). To argue that the SC can not only authorize the ICC to initiate investigations (controversial in its own right), but that it may do so retroactively with respect to events preceding the referral is taking this argument to a whole new level.

Try to imagine what this means… States routinely decline to accede to international treaties, and they do so for a number of perfectly legitimate reasons. If States can no longer be sure of the legal certainty created by the fundamental principle of lex retro non agit, then the whole international (legal) order is at risk of falling apart. That may sound a bit dramatic, but it is indeed the logical consequence of what retroactive SC referrals would entail. If you can retroactively apply criminal law — where lex retro non agit is supposedly sacred — then what does that mean for other areas of the law? Tax law? Contracts? Torts? Would the SC be able to decide that investment treaty X actually was binding on China in 1987, and thus China must repay India X amount of money for this and that violation arising from Treaty X?

That is a purely hypothetical example (and it should be clear already that I know nothing about investment law). But I do know that lex retro non agit is a fundamental principle of international criminal law, and certainly of the international law of treaties (including the ICC Rome Statute). I may be missing something here, but I am worried that the selective enforcement of criminal law principles — as suggested by this post — if taken to its logical conclusion, would undermine the fundamental principles on which the international legal order is premised.

I think you’re right that February 15 was chosen because the UNSC only wanted the period of the Revolution to be investigated. But I think there is more to that decision than simply that the UNSC was interested in the ICC investigating crimes committed by the Gaddafi regime from that point on. States on the UNSC did not want any of their dealings with Libya prior to 2011 investigated – that is why they chose February 15, 2011. I have had this confirmed by numerous lawyers. A major political problem is the narrative that this constructs. The narrative of Libya becomes one where the rehabilitation of Gaddafi and the complicity in torture and rendition escape any scrutiny. Instead, there’s a bridge between Gaddafi as the “mad dog of the middle east” in the 1980s and 1990s, to an international criminal in 2011. That states, especially the UK, France and Italy, propped up the Gaddafi regime economically, politically and militarily becomes largely irrelevant.

The legal question posed by restricting temporal jurisdiction of the Court is interesting. Having consulted some international lawyers, there seems no legal conflict in issuing such restrictions. That being said, there remains the normative question: should the UNSC be able to issue temporal jurisdiction retroactively? It is something I will have to think more about, but if the answer for you is no (which it seems to be), then is the UNSC referral of Darfur to Libya (which didn’t limit the Court’s jurisdiction) wrong? Do you believe Resolution 1593 is a risk to the international legal order?

“States on the UNSC did not want any of their dealings with Libya prior to 2011 investigated – that is why they chose February 15, 2011. I have had this confirmed by numerous lawyers. A major political problem is the narrative that this constructs.”

Sure, this is a problem. But is it for the ICC to rectify? The ICC isn’t about crafting historical narratives. The ICC deals with international crimes, and there are myriad legal rules that apply to the Court’s jurisdiction. These rules must be respected, and the point I’m raising speaks to that only.

“The legal question posed by restricting temporal jurisdiction of the Court is interesting… It is something I will have to think more about, but if the answer for you is no (which it seems to be), then is the UNSC referral of Darfur to Libya (which didn’t limit the Court’s jurisdiction) wrong? Do you believe Resolution 1593 is a risk to the international legal order?

You are already asking the WRONG question, if I may say so. Law is not morality nor vice versa. The question isn’t whether the referral was WRONG. The word wrong implies some kind of value judgment, and, again, I am interested in the legal issues, not whether Gaddafi or Bashir are bad. The question, to my mind, is whether the referral was/is permitted by international law, in particular the Rome Statute and UN Charter. Mamdani and other scholars have argued persuasively that the Sudan referral, ie Resolution 1593, did indeed violate international law. By extension, that would apply to the Libya referral as well.

Personally, I think Mamdani’s argument is quite compelling, though there are also serious counter-arguments that can be made in favor of 1593 (this has been explored in the literature, and I will not re-hash those arguments). With respect to retroactive jurisdiction, however, I think you’re on much shakier ground. Like I said in my previous post, the logical consequence of such a precedent would be that the SC could also retroactively apply other treaties. (Of course, one would probably have to also consider the question of ius cogens norms as constituting some kind of separate legal order, but I still think this is a very difficult legal argument to make). I am not aware of any secondary literature on the topic, but do let me know if you find anything out there.